Terms & Conditions
Last Updated: March 10th, 2011
These Terms of Service (hereinafter “TOS”), along with our Privacy Statement, both herein incorporated by reference, provide a set of policies and conditions that bind us. This TOS is between Javier Romero Productions, d/b/a BandSurfing (hereinafter “BandSurfing,” "Company," "we," "our," or "us") and you, our customer (hereinafter "Customer," "you" or "your"), and governs your use of services on our website (hereinafter “Website” or “Services”).
For questions, comments or suggestions, please contact us at:
THE COMPANY IS WILLING TO ALLOW YOU ACCESS TO THE WEBSITE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS TOS. BY ACCESSING OR USING THIS WEBSITE, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ, UNDERSTAND, AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS TOS.
- REGISTRATION. In order to gain access to this Website, you will need to register as a user. Either you or the Company may terminate your user registration at any time, for any reason whatsoever, including but not limited to your breach of this TOS. Upon termination of your registration, you will no longer have access to the Website, and any and all content, including without limitation, information, code, data, text, software, music, sound, links, photographs, pictures, graphics, video, chat, messages, files, schedules, fees and any other materials you may have uploaded (hereinafter “Content”) to the Website will be removed. You represent that all information you provide during the registration process and at any time thereafter (hereinafter "Registration Information") will be accurate, complete, and current, and that you will promptly update your Registration Information as necessary such that it is, at all times, accurate, complete, and current.
- TERM. Unless terminated as set forth herein, this TOS will commence on the first day you register, provide Registration Information, or receive any amount of Service from this Website, and continue for the term you selected during the registration process (hereinafter “Term Period”). Thereafter, this TOS will automatically renew after every subsequent Term Period, until terminated by you or us, with notice to the other. You may change your Term Period at any time, provided you contact us.
YOUR REPRESENTATIONS AND WARRANTIES.
- AGE RESTRICTION. You represent and warrant that you are 18 years or older, and if you are 13 or under, you are prohibited from accessing this Website without verified parental consent furnished to Company in accordance with the Children’s Online Privacy Protection Act of 1998 (COPPA, 15 U.S.C. §§ 6501–6506). SOME AREAS OF THIS WEBSITE MAY CONTAIN CONTENT THAT IS INAPPROPRIATE FOR MINORS.
- OWNERSHIP OF CONTENT. You represent and warrant that all Content you post, upload or otherwise make available on the Website will not infringe or violate the rights of any third party, regardless of the theory of law, but including and not limited to copyright, trademark, privacy or trade secret; and that you possess the legal right and authority necessary to publish any and all Content on the Website. Also, you represent and warrant that you will use any and all Content you access, download or otherwise utilize from the Website in the manner in which it was intended, and not sell, republish, copy, distribute, duplicate or otherwise make available, or infringe on any rights of another, for any Content that you yourself did not upload in the first place.
- APPROPRIATENESS OF CONTENT. You understand and acknowledge that BandSurfing provides services to bands and venues, with the intent and purpose to facilitate a marketplace between bands and venues; and you will therefore refrain from posting, uploading or otherwise making available any form of Content that violates the express intent of the Company (hereinafter “Inappropriate Content”). Inappropriate Content includes, but is not limited to, Content that is illegal, harassing or hostile, defaming, libelous, infringes on the rights of others, or related to gambling, adult, obscene or pornographic, hate speech, or otherwise can be construed by a reasonable person to be offensive. Inappropriate Content will be evaluated at the sole discretion of the Company, and the Company reserves the right to remove Inappropriate Content immediately, with or without notice to you.
- ACCURACY AND LEGITIMACY OF CONTENT. You represent and warrant that you are the owner, possess the necessary legal authority, or otherwise the valid representative and agent, of any and all Content you post, upload or otherwise make available on the Website; and that any and all said Content shall be free of defects, and you represent and warrant said Content shall be accurate, complete, and current, and that you will promptly update any Content you learn or know to be inaccurate. You bear full responsibility for any inaccuracy or misrepresentations of the Content you post, upload or make available on the Website, and you acknowledge and agree to hold the Company harmless from any inaccuracy or misrepresentation contained within Content.
- INFRINGING CONTENT – DMCA NOTICE. We do not allow or permit infringing Content on the Website. Please notify us immediately if you believe any materials on this Website infringe the copyright of a third-party. Upon our receipt of a proper notice of claimed infringement under the Digital Millennium Copyright Act (hereinafter "DMCA"), we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the Content in dispute. Pursuant to the DMCA, written notification of claimed copyright infringement must be submitted in writing to the following Designated Agent for this Website:
- LICENSE TO MUSIC FILES FOR REVIEW BY OTHERS. We permit you to post, upload or otherwise make your music available to others on the Website, so that other users may listen to and/or review your music; and in so doing, you hereby grant to the Company and other users, and you represent and warrant that you have the right to grant to the Company and other users, an irrevocable, perpetual, non-exclusive, transferable, fully-paid, worldwide license (with the rights to sublicense) to use, copy, perform, display, reformat, translate, excerpt (in whole or in part) and distribute such files; provided, however that in all events other users' rights with respect to such files will be subject to the USE OF WEBSITE CONTENT set forth below. You may remove such Content from the Website at any time and the license granted above to such music files will survive such removal. However, we will not continue to publish or make available on the Website the Content you have removed.
- USE OF WEBSITE CONTENT. You understand that the Content on the Website is available for your personal use only. Your use of any Content that provides for or facilitate commercial transactions is prohibited. You agree not to harvest or collect any Content, including but not limited to Personal Identifying Information (hereinafter “PII”), in an automated fashion or other means, for any purpose. You further agree that you will not use the Website in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Website. In addition, you agree not to use the Website to:
(i) upload, post, email, transmit or otherwise make available any Inappropriate Content;
(ii) impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity;
(iii) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
(iv) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
(v) use or attempt to use another user's account, without authorization from the Company, or create a false identity using the Website.
If you download or copy music Content from the Website, you agree to use any music Content that you download and copy in compliance with the following:
(i) Your use, download and/or copy of music Content is conditioned upon your prior acceptance of this TOS, and that any use of music Content other than in accordance with this TOS may constitute a copyright infringement;
(ii) You shall be authorized to use the music Content only for personal, noncommercial use;
(iii) You may not combine music Content with any video or image file to create a multimedia work;
(iv) You may not use music Content as a musical "ringer" in connection with a phone or phone calls; and
(v) The download and copy of music Content does not transfer to you any commercial or promotional use rights in the music Content; and
LIMITATION OF LIABILITY & INDEMNIFICATION.
- NO LIABILITY FOR INACCURATE OR INAPPROPRIATE CONTENT. The Company cannot and does not monitor, review or validate the Content posted, uploaded or otherwise made available on the Website, nor is the Company responsible for the conduct of the users of the Website. Therefore, the Company hereby expressly disclaims and assumes no responsibility for any and all errors, omissions, interruptions, deletions, defect, and delay of Content, including but not limited to booking arrangements, venues, schedules or the quality, performance, authenticity, professionalism, capability or conduct of bands, venues, or their owners, agents, operators or customers.
- DISCLAIMER OF WARRANTIES. The Company is not responsible for any problems or technical malfunction of any technology, including but not limited to telephone network or lines, computer online systems, servers or providers, computer equipment or software, or the failure of email on account of technical problems or traffic congestion on the Internet or at any website, including injury or damage to any person's computer related to or resulting from participating or downloading materials in connection with the Website. Under no circumstances will the Company be responsible for any loss or damage, including personal injury or death, resulting from anyone's use of the Website or any Content. THE WEBSITE AND CONTENT ARE PROVIDED "AS-IS" AND THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMPANY CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE WEB SITE AND/OR THE SERVICES.
- LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE WEBSITE, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSER OF: (A) THE AMOUNT PAID, IF ANY, BY YOU TO THE COMPANY FOR SERVICES; AND (B) TEN DOLLARS ($10). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SPABOOM SHALL NOT BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE.
- INDEMNIFICATION. You agree to indemnify, defend, and hold harmless the Company, and its respective owners, officers, directors, employees, agents, licensors, representatives, and third-party providers against any and all losses, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from your violation of this TOS. You will use your best efforts to cooperate with us in the defense of any claim arising from or caused by conduct of yours that violates this TOS. The Company reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, provided that you fully cooperate with the Company in asserting any available defenses.
- FEES AND PAYMENT POLICIES. You will pay the Company, according to the fees and registration on this Website, and you hereby grant the Company permission to charge your credit card for any and all Services requested on a recurring basis. We reserve the right to take any action we deem necessary to secure payment for Services, including but not limited to suspending or deactivating any and/or all Services. You agree to indemnify and hold us harmless from any liability resulting from our actions attempting to secure payment for Services.
- Relationship between the Parties. Neither you nor the Company is a legal representative, agent, or a partner of the other. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes. Each Party will maintain appropriate worker’s compensation for its employees as well as general liability insurance.
- Severability. In the event any provision in this TOS is held to be invalid or unenforceable, the remaining provisions of this TOS will remain in full force.
- Governing Law. This Agreement shall be construed in accordance with the laws of the State of New Mexico, excluding conflict of laws provisions, applicable to agreements made and fully performed therein.
- Waiver. The failure by either Party to enforce, at any time, any of the provisions of this TOS, or to exercise any election or option provided herein, shall in no way be construed as a waiver of such provisions or options, nor in any way to affect the validity of this TOS or any part thereof, or the right of either Party thereafter to enforce each and every such provision.
- Publicity. You agree that the Company shall be allowed to use your name on its list of customers, and disclose the same to its present and potential customers.
- Notice. All notices, requests, consents and other communications required or permitted under this TOS shall be in writing and shall be sent by email, or registered or certified mail, postage prepaid or transmitted by telegram or telefax if confirmed by such mailing, to you or the Company. Either Party may change its address by written notice to the other.
- Force Majeure. Either Party will be excused from any delay or failure in performance hereunder, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, novelty of product manufacture or other unanticipated product development problems, disruptions of Internet service, and governmental requirements. The obligations and rights of the Party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay; provided that such Party will give notice of such force majeure event to the other Party as soon as reasonably possible.